February 27, 2009

Jackson Lewis Sends Bloggers Nastygrams

The law firm Jackson Lewis delivered nastygrams this week to two health industry blogs, demanding that they take down anonymous comments and hand over information to help identify the person who posted the comments. Both blogs responded to the nastygram with posts saying that they will neither take down the comments nor turn over any information.

Did HIMSS hunt around for a lawyer with the same last name as the pseudonymous poster? We don't know that, but we do know that the letter failed to have its desired effect. The blog's author, Chip Hart, a practice management consultant for pediatricians, had this to say:

Don't these [people] realize that asking us to remove the content is ridiculous? Google has already cached it. It's already in the wild. HIMSS has two choices: ignore it or respond to it. Frankly. I'd suggest the latter. ... I'll even run a response verbatim, give HIMSS full exposure.

Jackson Lewis sent its other letter to the blog of Chilmark Research, a health industry research firm in Cambridge, Mass. In its case, the anonymous comments were left under the name "Calvin Jablonski," but similarly criticized HIMSS. Chilmark concedes that the easy way to make the lawyers go away would be to comply with the request. But that, it says, would set "a broader and far uglier" precedent.

An important foundation of this country’s founding is free speech, to a point. Yes, there are libel laws and the like but last we looked, the party taking offense must demonstrate clear damage. Are HIMSS and CCHIT, both receiving the wrath of Jablonski’s comments, truly damaged by what clearly appear to be the ravings of a disgruntled individual? The bottom-line though is that we do not want to censor comments that add to a discussion are pertinent to the topic at hand - PERIOD!

Like Hart at PedSource, Chilmark extends HIMSS an offer to set the record straight with a post on its blog. So far, Chilmark says, HIMSS has not taken it up on the offer.

How much worse can it get? The AmLaw Daily reports this morning that Latham & Watkins is slicing 190 associates and 250 non-lawyer staff. That is 12 percent of its associates and 440 total positions. It is the largest single set of layoffs ever by a law firm.

After mounting speculation, firm chairman Robert Dell this morning confirmed that the firm had little choice given the current economic climate. "It's with profound regret that we're taking this action," he says, adding that the depth of this recession was unprecedented. "The health of the global economy is likely to remain poor this year and so staffing levels have to be better aligned with client needs."

The firm is offering severance packages to all the laid-off employees of six months pay (capped at $100,000) and medical coverage. It is the most generous package a firm has offered in this current round of cuts.

On Wednesday, the blog Above the Law reported that Latham appeared ready to announce major layoffs and that the announcement would likely come today. Staffers got the news this morning, when managing partner Robert Dell sent a firm-wide e-mail announcing the cuts. Above the Law republishes Dell's e-mail today. "We made this painful decision with great reluctance and only after concluding that demand for legal services in this troubled economy will not provide enough work for all of our attorneys," Dell writes. "Needless to say, the depth and duration of this recession could not have been anticipated."

This blog has occasionally chronicled the adventures of Carl Malamud -- who I once described as quixotic -- and his organization public.resource.org. His belief is that all primary legal materials produced by the government should be readily available to the public. It is a belief so seemingly simple and obvious that it is surprising he has had to fight so long and so hard to make it happen. This is the guy who, way back in 1994, put the SEC's EDGAR database online, shaming the SEC into eventually publishing the database itself. And he has been fighting this fight ever since, most recently taking on PACER.

If Malamud is a kind of free-access fox clawing at an archaic henhouse of government and commercial legal publishing, he now has a new idea: Put him in charge of the henhouse. Malamud has launched a somewhat audacious but wonderfully rational campaign to have President Obama nominate him to be public printer of the United States, the executive who sits at the helm of the U.S. Government Printing Office.

Malamud's plank proposes a number of changes in the GPO's operations and in the government's approach to publishing. Among them:

Have GPO take the lead in making all primary legal materials produced by the U.S. readily available to the public.

Have GPO work with the rest of the U.S. government to bring about radical changes in the ways it presents information on the Internet.

Ensure that GPO is itself fully transparent and is a forceful and effective advocate for transparency throughout the three branches of government.

"Access to information is a human right," Malamud says. Critics might say that statement is too strong and has no support in caselaw. Supporters would say, "Give us the caselaw so we can find out." Were public printer an elected position, Malamud would have my vote.

Yesterday here at Legal Blog Watch, Carolyn Elefant told you about Dan Zoloth Dorfman, the laid-off lawyer featured as part of the new Wall Street Journal blog series, Laid Off and Looking. And Monday's National Law Journal will have this story about laid-off lawyers who sidestepped looking for new jobs and instead made the leap into solo practice. This week, Lawyer2Lawyer, the podcast that J. Craig Williams and I co-host, has its own story of a laid-off lawyer -- one still looking and selling furniture to make ends meet.

In this week's program, "Life After Lawyering," we interview Massachusetts lawyer Paul J. Semenza. A former insurance defense lawyer with more than 25 years experience practicing law, Semenza was laid off in December 2007. Unable to find legal work ever since, he now supports himself as a salesman in a furniture store. It is a job, he says, where his training as a trial lawyer serves him well. But he would still prefer to return to the profession he loves.

Boston was abuzz yesterday about a Massachusetts lawyer named Mary Flaherty. Did she win a big verdict? No. Did she earn acquittal for a notorious criminal defendant? No. Did she close a major corporate transaction? No.

Instead, what made Flaherty the talk of the Boston-area media was her appearance this week on the television game show "Who Wants to Be a Millionaire." In a week in which the movie "Slumdog Millionaire" made off with eight Oscars, Flaherty took her shot at becoming the Jamal Malik of the Massachusetts bar. Flaherty, an associate professor at Suffolk University and director of its Paralegal Studies Program, toldThe Boston Globe that this was not her first turn at a TV trivia show; she was on "Jeopardy!" 10 years ago. And appropriately so. In her hometown newspaper, the Gloucester Daily Times, she described herself as someone whose brain is full of "useless trivia."

So did this trivia-full Massachusetts attorney make it to millionaire status? She cruised through her first four questions, without using a single lifeline, easily racking up $16,000. Then came this question: "The fortune-telling die inside a standard Magic 8 Ball is an icosahedron, meaning it has how many triangular faces?" The Gloucester Daily Times recounts what happened next:

Flaherty first called her brother Christopher Flaherty, of Silver Spring, Md., who at first told his sister he didn't know the answer, but in the last second before the call was disconnected, suggested the answer to be "20."

Flaherty wasn't confident of Christopher's answer (which in the end was the correct choice) and opted to ask the audience, but when the studio audience's vote was evenly spread among the four answers, Flaherty was not convinced and decided not to answer the question and walk away with the guaranteed $16,000 despite having two more lifelines left.

Alas, Flaherty's was not the fairy tale rags-to-riches story of "Slumdog Millionaire." Had she won $1 million, she said, she would have bought an accessible home for her fiance, who is confined to a wheelchair. Instead, she'll use her winnings to take her family on a trip to Finland.

Honestly now: Had it been you, would you have known how many sides there are on a icosahedron?

February 26, 2009

BigLaw Money Doesn't Go as Far as You'd Think

Over at The Volokh Conspiracy, David Bernstein makes some interesting remarks about the impact of Obama's proposed tax increases on professionals in high-cost areas like New York City. Bernstein does the math with regard to some of his friends who, though not explicitly identified as lawyers, fit the description:

My friends in the [$250,000+ income bracket that would be subject to tax increases] tend to have have high mortgages,
work 60-80 hours a week, pay 40-50K or more a year for child care (a
nanny is necessary when you often work into the late evening--and even
day care for two kids in the DC area costs close to 40K a year), and
have six figures worth of student loans, primarily from professional
school, that they are still paying off. In other words, approximately
100K of their pretax income is taken up by their student loans and
child care costs, which are the equivalent of "startup costs". Their
mortgage costs may seem excessive, but you don't easily make six
figures in low-housing cost cities like Des Moines, and living in outer
suburbs is very difficult when you work 12 hour days.

If a hypothetical couple's initial income is a total of $300K, and
they work an average of 70 hours each, and assuming two weeks vacation,
they are in effect getting a grand total of $28.57 an hour for their
labors, and a fair percent of that is going to pay interest on the
mortgage. I'm sure they are glad to know that they are rich enough to
be taxed at over 50% of their marginal dollar.

Bernstein's post has, thus far, generated more than 260 comments. But what say you? Do high-earning large firm lawyers and other professionals deserve the added tax burden when their effective salary isn't that high? Back in the flush times of 2007, a Palo Alto, Calif.-based legal recruiter told The American Lawyer that in places like New York and Silicon Valley, "lawyers are just a little above middle-class." Still, do they need to pay more because they earn more, at least on paper?

Today's WSJ Law Blog features laid-off lawyer Dan Zoloth Dorfman, who's part of a new WSJ blog project entitled Laid Off and Looking, which follows out-of-work professionals as they look for new jobs. Dorfman, who is 60 years old, came to the law as a second career in 1998, following his first career as a rabbi. Practicing as an associate at Ross, Bell & Dixon (which has since merged with Troutman Sanders), Dorfman was laid off in September 2006 and has been looking ever since, with temporary contract gigs to sustain him in the interim. In his post, Dorfman describes the job hunt to date:

For the last two and a half years, I have networked like
mad, called or emailed everyone I know (or so it seems), consumed
gallons of coffee with friends and friends of friends, remained active
in bar committees and legal organizations, and answered every ad for a
commercial litigator I have seen on job sites whose similar names have
blurred together. My legal headhunters told me, ‘The market is
tight’–and this was before what now seems like daily reports of layoffs
by Big Law and medium-sized firms.

With one son in college, the second about to graduate
high school and my daughter in her first year in high school, I now
accept what I have long resisted–that I may have to relocate one more
time and live apart from my family. Friends and family have also urged
me to look outside the law and I have begun that process. I still
believe that I have something special to offer law firms and their
clients, but it takes more effort these days to maintain that faith.

With Dorfman's credentials, he shouldn't have trouble finding work. But as I see it, he's looking in the wrong places. Answering ads is, bluntly, a waste of time, while bar committees simply put Dorfman in touch with more lawyers, many of whom may be looking for work themselves. But with Dorfman's unique combination of skills -- as a former rabbi and commercial litigator -- it seems that he might have an ideal niche in representing religious organizations in a variety of matters, from forming non-profits to litigating First Amendment issues.

It seems to me that Dorfman isn't able to think outside of the box because the people he's surrounded by -- current lawyers and headhunters -- are all too deeply entrenched in the same box. Instead, Dorfman should follow the advice of Ken Adams, a former Biglaw attorney who's now an independent commentator and consultant on contract drafting. On his blog, Adams describes how he took charge and made the change at Adams Drafting. Likewise, blogger Victoria Pynchon shares her story of reinvention after being laid off from an Am Law 100 firm in a previous economic downturn. As with Pynchon and Adams, I am certain that there's a perfect job out there for Dan Dorfman. He just hasn't created it yet.

Remember Yolanda Young (whom we've previously written about here and here), the former Covington & Burling staff attorney who exposed what she called the "Jim Crow"-like practices of her former employer in this Huffington Post story? Now, The American Lawyer reports that Ms. Young is airing her grievances in another forum: the Superior Court of the District of Columbia.

In this 100-page court filing, Young alleges that she endured a hostile work environment rife at Covington, with ethnic and racial slurs made by white staff attorneys. But Young says that when she complained, her supervisors retaliated by "subjecting her to increased,
unwarranted scrutiny, falsely accusing her of overbilling, and
commanding her to work off the clock." Young, who earned $130,000 in 2006, also argues that she received smaller bonuses than her white colleagues.

But in a response to an EEOC charge, which preceded the lawsuit, Covington refuted Young's claims. Covington explained that many of Young's claims suggest that she misunderstood the role of a staff attorney -- for example, staff attorneys are not entitled to promotions or bonuses and their job description does not include substantive work. As for the racist comments, Covington says the slurs that Young identified (such as a lawyer's reference to having had a "pet monkey") were not intended to be racially offensive.

Any thoughts on the lawsuit? Was the disparate treatment that Young suffered -- such as increased scrutiny and a lower bonus -- racially-motivated or a simple consequence of her status as a staff attorney?

New York personal injury attorney Eric Turkewitz has concluded that ethics rules have been effective in "putting the brakes" on shameless online solicitation ads, which crop up as quickly as weeds in the wake of a mass disaster. While Turkewitz's conclusions aren't based on scientific evidence, he does offer a quick and dirty analysis based on three recent disasters:

First: On October 15, 2003 the Staten Island Ferry crashed killing 11 people and injuring 71. In the following days the Staten Island Advance was flooded with lawyer ads. This was the impetus for New York's 30-day anti-solicitation rule, which went into effect at the beginning of 2007. (I tried to get back issues to actually count the ads, but they were not available.)

Third: The crash near Buffalo had only seven ads, and most ... were from out of state.

While this isn't the most scientific of experiments, the sharp contrast leaves little doubt that ethics rules are effective in putting a sharp brake on attorney solicitation (or at least this public type of solicitation). Bearing in mind that there are about a million lawyers in the nation and about 75,000 in New York, the restraint shown has been extraordinary. Only a very few people attempted it, and they quickly withdrew.

I think Turkewitz is being too modest. As I view the evidence (albeit scant), it seems that Turkewitz's repeated coverage of lawyer solicitation of clients in recent airline cases (including here, here and here) may have e-shamed firms in removing the ads to avoid negative publicity. And in fact, after one of Turkewitz's posts, he was contacted by one of the lawyers whom he'd called out about the firm's ad looking for clients in the Buffalo disaster. The lawyer informed Turkewitz that he wasn't aware of the ad but that he would pull it -- and he did.

So was it ethics rules that lead to the removal of the ad, or Turkewitz's e-shaming? It may be a combination of the two. Even with anti-solicitation rules, most bars lack the resources to fully enforce them, so they rely on a combination of voluntary compliance and reporting by other lawyers. With watchdogs like Turkewitz on guard, it's more likely that violations of an ethics rule will reach the bar and put lawyers who engage in solicitation at risk of a grievance.

February 25, 2009

Three More Legal Blogs Close Down

It has seemed like a morbid week for followers of legal blogs. First came last week's post about legal bloggers throwing in the virtual towel after blogging left them feeling frustrated and depressed. Then came the news that the Wall Street Journal Law Blog had cut its lead writer, as we noted in a post here Monday. Then there was this week's Blawg Review #200, which, as we also noted here Monday, contained its own obituary. Turns out there was even more morbid news this week, as two long-time legal bloggers announced the shuttering of three different blogs. The good news is that one of the bloggers is ending his two blogs in order to make room for a new one.

On Sunday, David Giacalone announced that he would discontinue his blog, f/k/a ..., as of March 1. Giacalone has made his mark in the legal blogosphere by combining punditry and poetry on his blog. He has written regularly about his criticisms of the ways lawyers bill for their services and its negative impact on consumers. That is the topic to which he is devoting his attention as he wraps up his blog. We have to wonder whether Giacalone will return to blogging at some later date. After all, he has at least twicebefore said his goodbyes to blogging. This reader, for one, hopes he will be back.

The other blogger who closed shop this week is Doug Cornelius, who on Monday announced lights out at his knowledge-management blog, KM Space, and his real estate blog, Real Estate Space. In Cornelius's case, he is closing these blogs to start another, Compliance Building, where he will write about compliance and business ethics. The new blog follows a new job. Cornelius recently left the Boston law firm of Goodwin Procter to become chief compliance officer at Beacon Capital Partners, a real estate private equity firm.

During a ceremony in a Miami courthouse yesterday, lawyers formally apologized for their forbears' racism. At the Dade County Courthouse, the Dade County Bar Association hung a commemorative plaque over a once-segregated water fountain as its way of acknowledging and apologizing for a past history of racial injustice. "When the Florida Bar was formed in 1950, there were less than 25 black lawyers in the state," the plaque reads. "These lawyers represented their clients in segregated courthouses at a time when justice was neither equal nor fair, and when racial discrimination was not only countenanced by the law -- it was the law."

No one knows today which of the two water fountains on the sixth floor of the courthouse was reserved for whites and which for blacks, according to the Miami Herald. But Judge Scott J. Silverman, who serves as the court's historian, says he is sure they were carefully planned. He once found a partial set of old building plans for the courthouse that clearly showed the separate fountains on multiple floors.

One Southern Florida legal blogger, writing at Justice Building Blog, acknowledges that some may question whether the sins of the fathers should be visited upon their sons. But the anonymous blogger is glad about the plaque for what it says about Americans' willingness to acknowledge their collective mistakes. "While many of us have nothing to apologize for, it is important to remember that our society does," he writes. "And remembering this wrong will hopefully make sure we don't repeat it in the future."

"I'm pleased to announce that I have been nominated as a petition candidate for the 2009 Harvard Board of Overseers election," civil liberties lawyer Harvey A. Silverglate said this week in an e-mail to his supporters. As we discussed here in January, the Cambridge, Mass., lawyer and Harvard Law graduate has mounted a campaign for a seat on Harvard University's Board of Overseers, one of two bodies that govern the prestigious university. He hopes to do something about what he perceives as a lack of free speech there.

Silverglate and another petition candidate, Robert L. Freedman, a partner in the Philadelphia office of Dechert, were each able to collect the 219 alumni signatures they needed to win a spot on the ballot, which will be mailed April 1 to some 330,000 Harvard alumni. Both agree they face a tough fight. The last successful petition candidate was Archbishop Desmond Tutu 20 years ago. In the years since, even Barack Obama lost election as a petition candidate.
In his e-mail to his supporters, Silverglate writes that he and Freedman have decided to coordinate their campaigns.

Bob is more focused on educational issues, such as teaching methods and the curriculum. I'm more concerned with issues of liberty, fairness, and process, such as eliminating speech codes and reforming the notorious Harvard student disciplinary board procedures. While we focus on different aspects of the University, we are united in our belief that Overseers must be proactive in putting Harvard students, their lives, and their education first.

It may be a federal court first: A judge in Wichita, Kan., will let a newspaper reporter Twitter the trial of six accused gang members. Ron Sylvester, the Wichita Eagle reporter who we wrote about last May for his Twitter coverage of a capital murder trial, this week won permission from U.S. District Judge J. Thomas Marten to send live posts from the courtroom. During a brief hearing Monday afternoon, the judge declared, "Twitter is on."

In the months since Sylvester tweeted from court last May, other newspapers have followed suit. Reporters in Spokane, Wash., and Orange County, Calif., covered trials using Twitter. But Sylvester says this is the first time a federal judge has allowed him to post from the courtroom using Twitter. "Marten is tech-savvy, and led efforts to make sure the renovation of the 1932 federal courthouse in Wichita included updates for a wired environment," Sylvester writes. "The courthouse has wireless Internet connections that allow attorneys to access files back at their offices from the courtroom, for example." You can find him posting on Twitter as @rsylvester.

Another segment of the legal profession is also taking to Twitter. A number of law schools have created official Twitter feeds, according to Social Media Law Student. "Law schools are informing students about snow delays, on campus events, website updates, and student accomplishments," he writes. "Law professors are even jumping on adding announcements to these Twitter pages."

I've posted previously about budget legal services for divorces, such as Divorce Deli, a restaurant-themed Web site for online divorce, and the 60 Minute Divorce, where lawyers draft and file divorce papers for a low rate while the soon-to-be-exes enjoy a bite at McDonald's or Starbucks. Now, with the launch of My Ontario Divorce, our neighbors to the north also have low-cost divorce options.

As reported in the Toronto Star, MyOntarioDivorce.com is the brainchild of Canadian family law attorney Robert Berman, who offers potential clients a way to walk away from a bad marriage "with [their] dignity and bank account intact." Berman says he originally intended to make the site free with downloadable forms, but he soon realized that even with free forms, litigants still needed assistance to complete them. So instead, Berman developed an online form that meets the court's requirements, along with a program to guide users through the form in the privacy of their own home. Berman offers a money-back guarantee if the forms are rejected by the court.

The site offers several tiers of membership: a pay-as-you-go-option, which costs $497 per form; premium membership, which includes forms, newsletters and seminars for $597 a month; and a premium+ membership, which carries all of the premium features as well as the opportunity to consult with family law experts and ask case-specific questions. These prices seem higher than those at the American sites, but presumably they're still far less costly than hiring a lawyer.

Are you aware of online legal services -- for family law or other practice areas -- in different countries? Do you think other countries are more or less likely to be receptive to virtual legal services than the United States? Post your comments below.

They are -- as much or more than lawyers in general these days. But for some at least, that risk is counter-balanced by increased opportunities for rewards.

Collins begins by trying to drill down to find a gender breakdown for the recent layoffs. Since the legal practice areas most affected by layoffs are male-dominated fields like finance, real estate and corporate practice, it would seem that male attorneys are bearing the brunt of the layoffs. But practice areas aren't the only factor firms consider when cutting lawyers. In most cases, the first lawyers to go are those working part-time and billing fewer hours. And, no surprise, female lawyers dominate the part-time category.

Women are endangered at the partner level as well, says Collins. Most female lawyers rank low on the partnership totem pole, as they're more likely to hold non-equity positions. These too are among the first to face cuts when the economy goes south.

On the other hand, some experts Collins interviewed take the opposing position.

For example, Matt Rosen, human resources director at Schiller International University, actually believes that female lawyers who work part-time or flex-time may be able to weather the recession better, because firms will find their employment to be an asset during a time when cost-cutting is necessary. The trick is to make the asset obvious to the employer. Rosen also notes that many women practice in fields that are "hot" during the recession, such as labor and employment law.

So what's your view? Are female lawyers hurt more by the recession than their male colleagues? Why or why not? Please post your comments below.

We'd probably all agree that a lawyer who erroneously tells his client that accepting a guilty plea won't subject him to deportation (when it fact it would) is careless -- such counsel is negligent or even unethical when a lawyer renders advice on a topic outside of his or her expertise. But does the error rise to the level of ineffective assistance of counsel in violation of the Sixth Amendment? That's the question the in Padilla v. Commonwealth of Kentucky, which the Supreme Court yesterday agreed to hear, reports the Associated Press.

The facts from the Kentucky court's decision are fairly straightforward. Jose Padilla (no, not that Jose Padilla) is a Honduran national and Vietnam veteran who lived in the United States for decades but never became a citizen. Padilla was arrested and charged with several drug-related counts including trafficking five pounds of marijuana. Padilla's attorney negotiated a guilty plea under which all but the marijuana charge would be dismissed, and further, where Padilla would serve five years of an otherwise 10-year sentence. Padilla asked his attorney about the impact of the plea on his immigration status and his lawyer assured him that Padilla would not be deported since he had lived in the United States for so long. With that, Padilla accepted the plea. Two years later, believing that the government was preparing to deport him, Padilla filed a post-conviction motion to withdraw the plea, arguing that his attorney's erroneous advice constituted ineffective assistance of counsel in violation of the Sixth Amendment.

The majority rejected Padilla's argument, explaining that the lawyer's advice on immigration status was collateral to the criminal defense component of his representation, to which the Sixth Amendment right to effective assistance of counsel is attached. The minority disagreed, finding that whether collateral to Padilla's defense or not, the lawyer's erroneous advice, in response to an affirmative inquiry by the defendant, was inexcusable and justified a hearing on the ineffective assistance of counsel claim.

Courts have come to differing conclusions regarding immigrants' rights to effective assistance of counsel in cases where deportation is involved. Still, from my perspective the question seems simple. After all, if assistance of counsel isn't accurate, how can it be effective?

February 23, 2009

Lawyer's Book Leaves Jurors in Doubt

A book by a former lawyer and occasional blogger has three jurors doubting their 1993 conviction of a man in connection with a 1991 bombing that killed one Boston police officer and maimed another. A report today in The Boston Globe says that three jurors who sat in the trial of Alfred W. Trenkler, including the forewoman, now doubt his guilt. All three have written letters to U.S. District Judge Rya W. Zobel urging her to grant Trenkler a new trial or set him free.

The three jurors were swayed by Morrison Bonpasse, a Boston University School of Law graduate who lives in Maine and is employed as president of an association that advocates for a single global currency (for which he also maintains an occasional blog). Bonpasse has written a 700-page manuscript, titled "Perfectly Innocent," in which he lays out his arguments that Trenkler and alleged co-conspirator Thomas Shay are innocent. Bonpasse also operates a Web site, the Alfred Trenkler Innocent Committee, devoted to collecting information about the case.

Bonpasse's manuscript convinced Sheridan Kassirer, the jury's forewoman. After reading it, she wrote to Judge Zobel, "After studying the many details of the Alfred W. Trenkler case I am convinced that he is innocent. I hope you will see to it that justice prevails and he is released." For jurors to express this level of doubt, 20 years after the fact, is highly unusual, a former Boston prosecutor, Matthew Machera, tells the Globe. "To have three of them doubt their unanimous verdict and then after 20 years, that's almost unheard of. It's one thing if one juror writes, but if three separate jurors write, that is unbelievable."

Trenkler was convicted on three counts related to his alleged involvement in manufacturing the bomb that killed Officer Jeremiah J. Hurley Jr. Prosecutors contended that the bomb was meant for the father of Shay, who was Trenkler's lover. Instead, it killed Hurley and injured another officer as they tried to diffuse it. Hurley's widow remains convinced of Trenkler's guilt, she tells the Globe.

Bonpasse wrote the book based on jailhouse interviews with Trenkler, news reports, police reports, trial transcripts and other court documents. "I'm just appalled that the system is in fact very flawed," he told the Globe. "I'm appalled that the system is so slow and finds it so difficult to open its eyes and see what it's done to so many people."

We noted here earlier this month the settlement of the Goliath versus David trademark lawsuit in which international law firm Jones Day sued the small, locally focused real estate Web site BlockShopper.com. Earlier, in one of our first posts about the lawsuit, we highlighted the comments of Public Citizen lawyer Paul Alan Levy, who wrote in a post at the Consumer Law & Policy Blog that the lawsuit deserved a prize for "grossest abuse of trademark law to suppress speech the plaintiff doesn't like." (Public Citizen later participated in this case as an amicus on the side of BlockShopper.)

With the lawsuit now settled, Levy is revisiting the case and offering his thoughts on the lessons it has to teach. On one level, he writes, Jones Day achieved next to nothing from this litigation but for a lot of bad PR. What it got out of the settlement is virtually the same as what BlockShopper offered at the outset. And if the firm's real concern was protecting its lawyers' privacy, the settlement does little to address that. BlockShopper remains free to publish the same types of reports as before. But on another level, Levy says, Jones Day achieved quite a bit.

It has effectively sent a message to other defendants that it is not a firm to be trifled with, and that, when Jones Day "asks" you to do something, you had better do it or you are going to have to spend hundreds of thousands of dollars to defend yourselves. And Jones Day’s selection of trademark as the subject matter of its strike suit is no surprise, because the biannual AIPLA economic survey has consistently shown that trademark cases typically cost hundreds of thousands of dollars just to reach the summary judgment stage. ... In the end, the warning delivered by Judge Darrah to Blockshopper at the outset of the case -- Jones Day is just too big a law firm that you cannot afford to fight in litigation -- became a self-fulfilling prophecy.

Levy continues to believe that the lawsuit was abusive and that the law firm's opposition to deep linking was preposterous. "Hyperlinks are, after all, the very stuff that makes the World Wide Web a web," he says. To keep it that way, Levy urges a sort of hyperlinking guerilla warfare:

One might, however, suggest that the Internet community fight back against Jones Day, by repeatedly deep-linking from its name, and to its web site, in precisely the ways to which it objects, but which it cannot prevent through litigation. Jones Day’s bullies should learn that they cannot have their way. In addition to linking to Jones Day’s own web site, the community can use hyperlinks to show Jones Day what they think of its abuse of free speech online. Does Jones Day really believe in its theories of the case? Let’s find out. In the end, Jones Day will have to accept the limits of its bullying power.

I only wish the law concerning deep linking was as clear as Levy would like it to be. I agree with him that it is contrary to the core structure and purpose of the Web to oppose deep linking. But we can be sure that this will not be the last lawsuit to challenge it.

Is it the beginning of the end for the legal blog? First, I wrote here last week about legal bloggers throwing in the virtual towel, their blogging labors having left them frustrated and depressed. Then came the news that the esteemed Wall Street Journal Law Blog had cut its lead writer, as I noted in a separate post here today. Finally I arrive at today's Blawg Review #200, expecting a blaze of fireworks to celebrate this blog bicentennial, and instead find myself greeted by a photo of mourners at a funeral and this opening sentence: "Could this be the end of the line?"

Could it? It is not the end, at least not for Blawg Review. Rather, spurred by a post at ProBlogger urging bloggers to write their blogs' obituaries as an exercise in self-motivation, Blawg Review's anonymous editor takes up the challenge. Without repeating his entire eulogy, I offer this sample:

Blawg Review was the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decided which of the submissions and recommended posts were suitable for inclusion in the presentation. And the host was encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review.

And then from the funeral to the celebration! For, as "Ed" goes on to say, "We've come to praise Blawg Review, not to bury it." No Irish wake for Blawg Review, but a Dixieland jazz funeral, only with an Anglo-American musical theme adapted from The Traveling Wilburys.
But if not the end for Blawg Review, could it be for its anonymous editor? He closes this 200th Blawg Review with verses from the song "Heading for the Light":

My shoes are wearing out from walking down this same highway
I don't see nothing new but I feel a lot of change
And I get the strangest feeling, as I'm
Heading for the light

And then these words: "And on that note, my friends, I'll take a bow and leave the stage. Encore? This is ... The End of the Line." Suddenly, a recent conversation I had with Ed seems ominous and foreboding. He told me that he had arranged for others to take over Blawg Review should he one day disappear. Is Ed, too, now throwing in the towel?

A typical day for me goes something like this: Wake up. Check the Wall Street Journal's Law Blog. Brush my teeth. Check the Wall Street Journal's Law Blog. Make coffee. Check the Wall Street Journal's Law Blog. Shower. Check the Wall Street Journal's Law Blog. You get the picture.
So it came as a somewhat of a shock late Friday afternoon to see a brief post from the blog's principal writer, Dan Slater, titled "A Law Blog Farewell":

Today is my last day as the Law Blogger.

Writing the blog for the past year has been a privilege. And I’m happy to report that the Law Blog will remain strong under the guidance of longtime LB editor Ashby Jones.

All the best,

Dan

Slater, a former practicing lawyer, was one of 14 newsroom positions hit by cuts the WSJ announced earlier this month. A Feb. 5 memo to staff from Managing Editor Robert Thomson said that the cuts would include one member of the WSJ's New York-based law group but it provided no name. As Slater's post indicates, the blog will continue with legal editor Ashby Jones as its primary contributor.
I can only echo what Mark Obbie said about Slater's layoff at his blog LawBeat:

Slater's departure is legal journalism's loss. He contributed original reporting (something not many bloggers can claim) and smart writing to the coverage of law from a business perspective. Jones is an able replacement. But, with one less staffer, it's obvious that law coverage in the Journal and online will suffer a net decrease.

Jones is a veteran legal reporter who formerly worked for The American Lawyer magazine. As Obbie says, he is an able replacement. The problem is, he already has a job, as editor of the WSJ's law page. Without a full-time writer, the Law Blog is likely to scale back its coverage of the legal industry. That will certainly throw my daily routine off kilter, and probably do the same to the daily routines of a large number of loyal Law Blog readers.

February 20, 2009

Global Alliance Pursues Madoff

Unique problems demand unique solutions. There's no doubt that Bernie Madoff's $50 billion Ponzi scheme was an unprecedented crime, both in terms of the dollar amount involved and the enormous scope -- the fraud impacted victims all over the world.

So instead of trying to monopolize all of the work in the case, law firms representing those harmed by Madoff are doing something different. As The Am Law Daily reports, 34 law firms from more than 20 countries involved in one way or another with Madoff litigation formed a "Global Law Firm Alliance" to serve as "a point of contact" for exchanging non-privileged information and expertise. The group will also figure out ways to cooperate as claims move forward so that clients with similar interests don't wind up undermining each others' cases through conflicting approaches.

Keeping an alliance together won't be easy. Says Sonnenschein Nath & Rosenthal bankruptcy and restructuring partner Carole Neville, "There are a lot of issues that have to be dealt with -- client confidentiality, privilege, and joint events." Still, Neville believes that having support and cooperation from colleagues, particularly those abroad, can increase the likelihood of successful outcomes.

So what do you think? Can 34 major law firms play nicely together? Or is a unified front between so many players as unlikely as, well, as unlikely as a $50 billion Ponzi scheme that went undiscovered for at least a decade? Post your comments below.

Akin Gump Strauss Hauer & Feld wasn't able to give its partners a fancy retreat this year, so it's giving them something else instead: a lesson in first year contract law. As the The Am Law Daily reports, Akin Gump scheduled a partner retreat at the luxurious Hotel Del Coronado in San Diego. But after booking the venue, the firm canceled the retreat, deciding that it would be unseemly to host a lavish event with with the economy in its current state. Thereafter, the hotel sued for breach of contract, claiming $385,950 in liquidated damages for, among other things, "877 sleeping room nights" that were set aside for partners at the firm.

It's not clear what defense Akin Gump will present if the suit doesn't settle. Perhaps the firm will try the defense tactics of a renowned hotelier, Donald Trump. According to Reuters, The Donald is claiming that he should be excused from paying up on a guarantee where he defaulted because "the world economic crisis constitutes a force majeure."

Now, courtesy of Future Lawyer Rick Georges, comes word of yet another lawyer networking site, aptly named MyLawNetwork.com. The site promises to serve as both an online resource for lawyers seeking information on courts and judges (including a feature that allows lawyers to post comments anonymously about a particular judge) and a directory to help lawyers locate local counsel and exchange referrals. The site offers a basic membership for no charge and a premium membership for $240 a year.

But from the looks of the Web site, it seems MyLawNetwork may have jumped the gun with its public launch. The site boasts an uncluttered, tight design, but beneath the professional looking facade, there's minimal substance. For example, when I clicked on "Maryland," one of the jurisdictions in which I'm licensed, the site displayed a list of each of the state's judicial counties. But when I tried to drill down, there wasn't any additional information -- not even the address of a particular court or any of the judges. As for content, the site currently includes a grand total of 10 articles on assorted topics, and no blog -- just a feed from other blogs.

Likewise, I couldn't find information on who's behind MyLawNetwork. The About Page claims the site was started "for lawyers, by lawyers," but I don't see a single name listed on the site. I'm not sure how its creators expect to build the type of community and trust they're hoping for when they're not willing to provide any biographical information about themselves.

MyLawNetwork seems to be another one of those "if you build it, they will come" social networking sites, like the short-lived, early mover Lawbby. The site's lack of content is a missed opportunity -- it would have been more promising if it offered great content while waiting for a community to build around it. Hopefully MyLawNetwork will get its act together and increase its substance, but by the time it does, users may have already moved on to the next new thing.

February 19, 2009

Blawger's Blast Heard Around the (Toy) World

No one would ever accuse Walter Olson of mincing words at his blog Overlawyered. But his particularly damning words yesterday for a New York Times editorial about the Consumer Product Safety Improvement Act were music to the ears of the choir of CPSIA critics. "Clueless. Disgraceful. Grossly ill-informed. And cruelly hard-hearted toward families and businesses across the country that are facing economic ruin," Olson said of the NYT's stance. By day's end, Forbes.com had picked up Olson's post and reprinted it as editorial commentary.

Toys containing lead paint were the danger that spurred Congress to pass the CPSIA last year. But the resulting legislation went well beyond toys to become the most significant overhaul of consumer product safety laws since the creation of the Consumer Product Safety Commission in 1972. The NYT editorial describes the law "as providing the safety net that consumers assumed they already had" and it criticized the CPCS for delaying implementation of important aspects of the law. "The delay has caused confusion and allowed opponents to foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses."

For Olson, those were fighting words. He took offense at the editorial's suggestion that small businesses and others who feared the impact of the law were "just imagining things."

So small enterprises from coast to coast are just imagining things if they plead desperately for places like the Times to notice that they have already closed down, or will have to do so in the foreseeable future, or have lost thousands of dollars in unsalable inventories. Motorbike dealerships around the country are just imagining things if they think they’re staring at massive losses from the inability to sell their products, even though news-side talent at the New York Times has in fact covered their story well -- coverage which the editorial studiously ignores.

Although Olson had no praise for the NYT's editorial writers, he earlier found others in the news media who distinguished themselves for their coverage of this issue. That coverage, in turn, "was a triumph of social media," he wrote, sparked by blogs and tweets that put the issue in the spotlight.

Olson's take on media coverage was echoed by legal-media observer Mark Obbie, who initially accused major newspapers of dropping the ball on this important consumer story but then saw some uptick in their coverage.
Still, the NYT and the Washington Post remained scant in their coverage, causing Obbie to wonder:

What's going on here? I usually reject conspiracy theories by partisan media critics, based on my experience. But in this case, I do suspect a bias -- one based on big-time journalists' inability to connect to a concern voiced mainly by handicraft sellers, thrift shops, and second-hand retailers.

At least one thing, for sure, is going on here. As Olson suggests, we are once again witnessing the power of social media to steer the course of public debate.

"Do you know a faculty member who propositions students?" asks Bridget J. Crawford, a Pace Law School professor, at Feminist Law Professors blog. "If you’ve spent any time in academia, my guess is that the answer is 'Yes.' Does that faculty member think he (or she) is propositioning students? My guess is the answer is, 'Probably not.'"

Say you are a law school prof who does know of colleagues who proposition students. Do you report them? Unlikely, Crawford says. "Profs tend to respect wide zones of privacy in personal matters." If you do report them, does the school investigate? Again, Crawford says it is unlikely. "Everyone is an adult here," she hears law schools say.

Crawford raises these questions in light of news this week of a lawsuit by five former and one current student against East Stroudsburg University in Pennsylvania. Their suit alleges that university officials did nothing to prevent a former vice president from making unwanted sexual advances toward male students even after repeated reports of his misbehavior. The suit says that the university covered up complaints about the VP even though his "inappropriate and unlawful sexual conduct toward plaintiffs and other young African-American ESU students was blatant, open and notorious."

When law schools overlook professors who pursue students, they are guilty of "willful ignorance of power differentials," Crawford believes. In light of this new lawsuit, perhaps law schools should reconsider their inaction. "Deans and directors, listen up," Crawford urges. "Looking the other way now means looking at a subpoena later."

History has a way of repeating itself. As we suffer our way through the current recession, we forget that we've been through down times before and survived. Perhaps the recession of 1990 and 1991 was less dramatic than the current slump, but for lawyers who lost their jobs in that go-around, the pain was no less than what many lawyers are feeling today.

Victoria Pynchon reminds us of this through a continuing series of posts at her blog Settle it Now that she is calling "The Perils of Pauline." In this melodrama, Pauline's real name was Victoria and, in the spring of 1992, she felt the aftershocks of the recession first-hand when an Am Law 200 law firm laid her off.

I was a twelfth year associate with no book of business. I was making a lot of money with liberal bonuses, and tremendous benefits. And I was pretty much spending all of it every month. The new car and the new condo. An expense-account life-style I'd taken on when not on a business trip. An attitude. Sound familiar to anyone?

Before long, she was able to find another job. But in moving from her former job to her new one, "I was about to cross the divide from one legal profession to another." She went from an office in a sleek Los Angeles high-rise to a desk in a storage room in a three-lawyer suburban firm. She was earning exactly one-half what she'd been paid before, was receiving no benefits other than health insurance, had no secretary and no longer had access to online legal research.

I drive home one late summer evening and tote up my bills. The housing market has crashed and my condo is underwater. I owe the homeowners' association five grand - then a considerable sum. I cannot pay the HOA and my house payment as well. I have other bills. I'd just returned from rafting rivers through Costa Rican rainforests when I was laid off. I'd been too busy to keep track of my expenses.

It seems that I have, finally and quite irrevocably, failed."

We know better, of course. Pynchon continued to have a successful career in litigation and then to become a full-time mediator who helps resolve the same types of complex commercial cases she once litigated. Her story of how she got from there to here continues to unfold on her blog. But for any laid-off lawyer today who looks ahead and sees only bleakness, Pynchon's story provides reason to hope.

Even blawgers get writer's block. Any lawyer who writes a blog will tell you that there are days when drafting the simplest post seems like an Olympian feat. Some blogs run hot and cold. The author will post consistently, even furiously, for a time, then seem to drop off the face of the earth, and then return to hyper-blog mode. That is understandable. We are, after all, lawyers with day jobs and families and other responsibilities.
But sometimes legal bloggers throw in the towel for deeper reasons. Consider the examples of two popular IP bloggers, William Patry and Keith Henning.

Patry is a prominent copyright lawyer who works as senior copyright counsel for Google and wrote a seven-volume treatise on copyright law. Early in 2005, he launched The Patry Copyright Blog. It quickly became the last word on all things copyright. But last August, after some 800 postings, he announced the end of the blog.
He decided to give it up, he wrote, for two reasons. One was readers' "inability or refusal to accept the blog for what it is: a personal blog." By that, Patry meant that readers were unable to separate Patry the person from Patry the Google lawyer. Readers regularly assumed his views were Google's.

"On top of this, there are the crazies," he wrote, "whom it is impossible to reason with, who do not have a life of their own and so insist on ruining the lives of others, and preferably as many as possible."

His second reason was that he found the current state of copyright law too depressing. "It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. ... I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer."

Patry's ending of his blog was followed two months later by Henning's decision to end his IP blog, Copywrite, for similar reasons. A copyright lawyer in Arkansas, Henning cited Patry's post as foreshadowing his own reasons for quitting. For Henning, like for Patry, his top reason was the readers. "There are some strange people out there," he wrote. "You would not imagine the strange and abusive emails I receive because of a stance I take on something as benign as balance in copyright law."

Time was another factor for Henning. But his third and fourth reasons were, "It is depressing," and, "It is really depressing." The depressing part, he said, was that "nothing seems to staunch the flow of the [IP] rights grab by big business." The really depressing part, he added, was the flood of calls he was getting from people seeking help after being sued by the record industry for file sharing. "The sadness in their voices pains me."

Now that the music industry has abandoned its strategy of suing everyone under the sun, perhaps Henning will someday return to the blogging fold. But Patry and Henning illustrate that legal blogging carries a potential downside. For any lawyer thinking of getting into blogging or wondering whether to continue, the final words of each of these bloggers are worth a read.

February 18, 2009

When a court appoints lawyers to represent indigent defendants, should it take race into account? Ohio solo practitioner Lafe Tolliver says yes, in this provocative column in The Toledo Journal.

Tolliver explains that the county spends "millions of public taxpayer dollars" to represent indigent clients in courts through Lucas County, Ohio. Yet in Tolliver's experience, the majority of attorneys appointed under the system are white, while the majority of the criminal indigents whom they represent are black:

A black lawyer
should not have to go to the courthouse and see appointments after
appointments go to the same white lawyers who are representing for the
most part a black indigent population. Something is wrong with that
picture. Why cannot black defense attorneys dine at the public feedbag
and more often than it is now or has been in the past 20-plus years?

I don't know how much truth there is to Tolliver's arguments, but he raises an interesting point: Should factors like race -- and by extension gender, religion or other social characteristics -- play a role in the court appointment process? Do they have an impact on a lawyer's ability to effectively represent clients?

More broadly, what is the fairest way for court systems to appoint lawyers to criminal cases? Should appointments be based on merit alone, or perhaps a lottery or rotation (i.e., where the court rotates through a list of lawyers)? As the economy worsens, more and more lawyers will be vying for court appointments. And as the competition grows, courts may need to re-evaluate their court appointment systems to ensure that they're fair for lawyers, but more importantly, effective for clients.

Increasingly, lawyers are becoming familiar with the benefits of adding online video to a Web site. But now mediators are following suit as well. As Diane Levin points out at Mediation Channel, mediators are now using video to advertise their service, and more importantly, to educate others on how mediation works. Case in point: this video, by California attorney Lowell Steiger. Steiger persuaded two clients to allow him to record a mediation session over a neighborhood dispute involving a dog, and uploaded the video to YouTube. It showcases Steiger's mediation skills, but more importantly, gives the public an inside view of the mediation process.

In what other ways do you think the legal profession can use video? Post your comments below.

Hodnicki ponders the reason for the significant subscription reduction. Of course, technology is a factor; with more law review articles available online through services like LexisNexis, Westlaw or Hein Online, there's less reason for hard copy subscriptions. And there's also the "irrelevance factor." Hodnicki writes:

Maybe law review articles simply are not as relevant to members of the bench and bar as they once were. Maybe it is time to cast aside the law review publishing model and replace the 200-some titles with a handful of peer-review law journals.

There's another factor that has made law reviews less relevant, and that's blogs. With so many law professors offering timely, if not seat-of-the-pants analysis of recent cases and current legal issues, there's less reason for reference to stale law review content.

Still, I have to admit that I'm partial to law reviews. I don't subscribe to them, but when I go to the law library, it's a treat to pore through the articles from 60 or 70 years ago and read about the law as it used to be. Eliminating law reviews may save money, but does it come at the cost of saving the profession's scholarship and history?

Today's decision by Facebook to rescind changes to its terms of service, which would have permitted Facebook to use and retain user content for its own purposes even after users left the site, proves that even widely popular and successful companies are neither above the law nor above the demands of their users. For those who missed the story, a few days ago Facebook amended its terms of service to allow Facebook to use any content uploaded by users as the company deemed fit, even after users closed their accounts and left the site, according to Consumerist, which discovered the changes. Prior to Facebook's changes, the terms of service provided that any rights to content that the company claimed would expire.

Facebook's changes raised privacy concerns, because users who left the site would lose the ability to control use of the information they posted. For that reason, the Electronic Privacy Information Organization mobilized to file a complaint against Facebook with the Federal Trade Commission, challenging Facebook's retroactive changes to its terms of service.

But it wasn't threat of legal action that persuaded Facebook to change its policy. Instead, according to the The New York Times, Facebook succumbed to pressure from users, who created Facebook groups to complain about the company's new policies. Fearing the backlash, Facebook reverted to its original terms of service.

In reading about the incident, I noticed a bit of irony. Facebook users don't pay to use the site, yet were able to use their collective will to force changes. By contrast, as Jordan Furlong describes at Law 21, many powerful corporate clients are still having difficulty in forcing law firms to reduce their fees. Perhaps GCs should take a lesson from Facebook users.

February 17, 2009

Shorty Awards Honor Lawyers on Twitter

It was not exactly a landslide, but lawyer, blogger and Twitter-er Nicole Black earned first place in the law category of the Shorty Awards, which honor the best producers of content on the microblogging site Twitter. Quite an achievement, when you consider that each Twitter post is limited to 140 characters. Black earned first place with a grand total of six nominations, including this one from Luis A. Martinez, a career coach based just outside of Black's hometown of Rochester, N.Y.: "I nominate @nikiblack for a Shorty Award in #law because she's an indefatigable defense atty. & champion 4 Social Media in Law."

She is also one heck of a cook, judging by the photos she regularly posts to Twitter of her culinary creations (such as this one of yesterday's dinner). We can only assume that @JDTwitt is no match in the kitchen, which may explain why the Shorty Awards ranked this JD Supra director of communications second, even though he matched Black in nominations. In fact, Black was one who nominated JDTwitt (whose real name is Adrian Lurssen), writing of him: "I nominate @JDTwitt for a Shorty Award in #business because ... he's a consummate businessman & knows his stuff." Their feelings are mutual, given that Lurssen was one of the people who nominated Black, "because her legaltech kool aid is actually a bottle of good wine."

These legal Shorty Awards were not "official" awards categories. The award sponsors created a list of official categories in areas that ranged from advertising and apps to videogames and weird. In addition, users were invited to generate their own categories. And they did, creating more than 1,500 of them. While some of the more popular categories drew hundreds of nominations, the law category attracted a total of only 28. A separate lawtech category had only two nominations, resulting in resounding first- and second-place finishes for the two nominees, @lilyhill and @internetcases. In case you're wondering who submitted those two nominations, it was none other than Nicole Black.

As the American Bar Association wrapped up its midyear meeting, its House of Delegates, its policy-making body, met into the late afternoon yesterday debating a host of critical legal issues. Even though the meeting was in my home base of Boston, I wasn't there in person. But I almost felt like I was, given the gavel-to-gavel webcasting, live-blogging and Twittering that went on from the meeting. Whereas the delegates' meetings once had the veiled feel of one of those secretive, sausage-making sessions no one is sure they really want to see, the august body has now gone fully digital and transparent.

The meeting may have crossed over into cyberspace, but the issues it took up were firmly grounded in the real world. By day's end, the delegates had adopted nearly three-dozen measures. A complete list of the measures and the delegates' votes is on the ABA Web site. Among the measures they approved:

A measure urging the Obama administration to ensure that any detainees who are expected to be charged with crimes be prosecuted in federal district courts and be given all rights of habeas corpus with full due process.

A measure opposing the imposition of federal jurisdiction over child custody cases involving members of the military and urging that military deployment not be the sole reason to deny child custody.

A measure to help ensure access to justice and due process for those charged with civil immigration violations.

A measure to amend the ABA Model Rules of Professional Conduct to permit law firms to screen lateral hires so that conflicts of interest are not imputed to all lawyers at the hiring firm.

For the first time, the ABA broadcast a live webcast of the delegates' meeting. The entire webcast was archived and remains available for viewing here. The ABA also recorded other audio and video highlights from the midyear meeting, which can be seen and heard at this page.

As the delegates were meeting, reporters and editors from the ABA Journal were sending out regular news dispatches of the day's developments. They were also sending out those dispatches and other brief updates throughout the day via Twitter. They were not alone in tweeting the meeting. Daniel A. Schwartz, the Connecticut lawyer who writes Connecticut Employment Law Blog, live-tweeted the entire delegates' meeting via his TwitterBerry. And if all that was not enough coverage, the newspaper Lawyers USA live-blogged the entire meeting.

Valentine's Day has come and gone, but the question psychologist Fiona Travis raises is a perpetual one: Would someone have to be crazy to marry a lawyer? "It's not that lawyers lack relationship-building skills," she writes in a post at the blog Lawyer Avenue. "But, overworked, overburdened and squeezed by time -- and now, the worst downturn in two decades -- lawyers do exhibit communication and intimacy breakdowns peculiar to their education, their professional training and work environment."

And that is one of the nicer things she has to say about lawyers as marriage prospects. Consider:

"The same traits that bring lawyers success in the workplace also interfere with their achieving meaningful, intimate relationships in the home."

"When one combines the lawyer personality with the lessons learned in law school, the combination makes for great courtroom drama … but is also counter-productive in an intimate interaction with one’s spouse."

"Individual lawyers may not have all the characteristics, but -- when they’re honest -- they will recognize that they possess such marriage-straining attributes as ambition, narcissism, skepticism, defensiveness, perfectionism and the need to be in control."

"A disproportionate number of people who are less emotionally astute gravitate into the legal profession."

She's convinced me: Lawyers make lousy lovers. If anyone reading this is considering marriage to a lawyer, turn and run now. Travis makes this abundantly clear. That is her point, right?

But wait. Turns out Travis is married to -- you guessed it -- a lawyer. On top of that, she is the author of a book about how to succeed in such a marriage: Should You Marry a Lawyer: A Couple’s Guide to Balancing Work, Love & Ambition. As it further turns out, the point of her post is not necessarily to counsel against marriage to lawyers as much as to counsel lawyers on how to be better spouses.
So there is hope, after all, for star-crossed lawyers.

If you are interested in her advice about marriage, I will leave you to read her full post. I will tell you a slight spoiler. It boils down to this: The bedroom is not the courtroom. What works in the latter will fail in the former. Unless, of course, your spouse is also a lawyer.

Is Blawg Review #199 the best Blawg Review ever? Well, the editor of Blawg Review says it is the best crime Blawg Review ever. He also says it is a perfect example of how to write a Blawg Review. "The next time somebody asks me how to write a great Blawg Review," he writes, "I swear I'm just going to tell 'em where to go." Which is, he hastily adds, to this Blawg Review #199.

While Blawg Review aficionados debate whether this is the best of breed, they might also compare numbers on whether this is the longest. This week's Blawg Review is written by Mark W. Bennett, a Houston criminal defense lawyer and author of the blog Defending People. Bennett remarked on Twitter that this Blawg Review weighs in at 3,900 words -- the equivalent of a fair-sized magazine article. "Too long?" he asks the Twitterers of the world.

The best Blawg Review? The longest Blawg Review? Maybe or maybe not. But you would expect such superlatives to be bandied about for a Blawg Review written by Bennett. After all, he is the winner of the ABA Journal Blawg 100 award for best crime law blog in 2008. And it is a good read.

February 13, 2009

Advice From Lawyer Lincoln

A lawyer's time and advice are his stock in trade, said one of our nation's most famous lawyers, Abraham Lincoln. But in honor of President's Day, you can have the privilege of some of Lincoln's advice at no charge, courtesy of Rhonda Abrams in this article at USA Today. From the story, here are some choice pieces of Lincoln-esque advice for lawyers:

On planning and time management:

• "Leave nothing for tomorrow which can be done
today. Never let your correspondence fall behind. Whatever piece of
business you have in hand, before stopping, do all the labor pertaining
to it which can then be done."

On dealing with clients:

• "An exorbitant fee should never be claimed. As
a general rule never take your whole fee in advance, nor any more than
a small retainer. When fully paid beforehand, you are more than a
common mortal if you can feel the same interest in the case. ... Settle
the amount of fee and take a note in advance ... and you are sure to do
your work faithfully and well."

• "Discourage litigation. Persuade your
neighbors to compromise whenever you can. Point out to them how the
nominal winner is often a real loser — in fees, expenses, and waste of
time."

On the importance of quality and integrity:

• "If in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer."

Have a great Presidents' Day weekend -- we'll be back at Legal Blog Watch on Tuesday.

Everyone loves a love story, even lawyers. From around the blogosphere, here's a roundup of Valentine's Day-related stories:

Partners in law and life: The idea of husband and wife attorneys
working at the same firm is no longer unusual these days, as firms are
eliminating policies that bar couples from firms, according to the National Law Journal.
It seems that working in the same office is one of the best ways to
spend time together given the long hours that law practice demands.

Romance 101 for lawyers: South Florida lawyer Hugo Alvarez shares his story of how he proposed to his wife here. After dating her for two years, Alvarez created a fictitious lawsuit and had his then-girlfriend served with a subpoena for a deposition -- and she asked him to represent her. At the deposition, Alvarez had the opposing counsel question his girlfriend, and when counsel reached the question series' arc, Alvarez took over, dropped to his knee and presented a ring. The couple still has the actual deposition transcript to document the day.

And for the less romantically-inclined this weekend...

If you've got 60 minutes, you can get a divorce: The ABA Journal reports on the "60 Minute Divorce," the brainchild of New York's Brodsky Law Firm.
Essentially, married couples seeking to separate can show up at the law
firm, pick up a $10 gift card for lunch at McDonald's or Starbucks and
enjoy a final awkward meal together while the firm prepares a $699
divorce ($299 for the divorce, with the rest for filing, process and
court fees). After lunch, the couple returns to the office, signs the
paperwork and splits.

Don't call Bruce MacEwen, of the Adam Smith, Esq. blog, a triskaidekaphobic. As MacEwen argues, yesterday's spate of law firm layoffs (nearly 800 associates and staff nationwide, according to The Recorder) has nothing to do with bad luck, it's just another sign of today's recessionary times.

Still, why did firms announce so many layoffs on Thursday? MacEwen says that it's partly coincidence, but also partly a result of three other factors:

* Financial results for 2008 are now in, and there can no longer be an argument in many firms that "we need to wait to see what the numbers actually are" before making any decisions. Lawyers are, among other things, believers in evidence, and the results of 2008 are now in evidence. I can imagine that many tentative decisions which were awaiting confirmation by the final numbers were pending, only to be announced this week.

* Similarly, no one wants to be so heartless and inhumane as to fire people during the holidays. This would explain the withholding of layoff announcements during December and early January.

* During end-of-year discussions with clients about collections and expectations for 2009, you have to believe that some reality checks were put in place about what level of revenue firms might expect going forward. If those expectations are now built in to the firms' 2009 financial models, adjustments in the cost base might be in order.

February 12, 2009

Legal Podcast Roundup

Legal Podcast Roundup
Lawyer Denise Howell has a new installment out of her podcast, This Week in Law. Howell and her roundtable of legal commentators -- Ben Franske, Colette Vogele, Ernie Svenson, and Evan Brown -- discuss a range of hot topics, from iPodMeister and the CD first sale doctrine, to hiring tech-savvy lawyers, to Obama's BlackBerry.

More than three-quarters of lawyers in Massachusetts believe they will be hard hit by the recession and that the legal field will remain rocky for some time to come. That is the conclusion of a survey published this week by the Massachusetts Bar Association. The December e-mail survey of MBA members focused on how the current economic climate is affecting its members. Among the key findings:

78.5 percent of lawyers believe the entire legal profession will be affected by the recession.

73.2 percent say the legal field will continue to be rocky for a while.

48.6 percent expect to earn less in 2009 than they did in 2008.

46.6 percent blame financial institutions as the cause of the recession.

51.3 percent predict the downturn will not end until 2010, while more than 18.2 percent believe it will continue into 2011.

The bulk of those who responded to the survey have been in practice for more than 20 years and earn annual salaries of between $100,000 and $200,000. About a third of the lawyers who responded are in solo practices.

Lust? In a legal blog? Richey finds it in a post about Miami's unsuccessful attempt to shut down a gay voyeur site operating out of a residential house and in another about the legality of lusting for animals. As for the other six, suffice to say these are lawyers we're talking about. Gluttony? When I think of that word in the context of lawyers, I envision overstuffed suits in high-end steak houses. But Richey, DUI lawyer that he is, finds an example in a post about one too many.

It just gets easier from there on down the list. Greed, sloth, wrath, envy and pride? Hey, lawyers don't just see this stuff every day, they act it out. That said, it might be hard to match Richey's find in the pride category -- a post about lawyer Marc Dreier's bid to establish a luxurious private prison all to himself. Richey harvests many more examples of sin from the vineyards of legal bloggers, so be sure to read his entire post.

The Goliath versus David lawsuit in which international law firm Jones Day sued the small, locally focused real estate Web site BlockShopper.com, appears to have settled. BlockShopper co-founder Brian Timpone told Alison Grant, a reporter at The Plain Dealer, that the settlement allows BlockShopper to continue linking to the law firm's Web site, provided it uses no embedded links, Grant writes at The Plain Dealer's Business Blog. "They had no shot at winning, but they were going to bleed us dry," Timpone said, adding that his company has spent more than $100,000 defending itself.

Under the settlement, provided to The Plain Dealer by BlockShopper attorney James Klenk, BlockShopper can publish links to Jones Day but they can't be "embedded links." Those are defined as hyperlinks that are placed on a word or name.

Instead, BlockShopper will have to place the Web address next to references to the firm. In other words, instead of writing Daniel P. Malone Jr. is an associate in the Chicago office of Jones Day," BlockShopper must write "Malone (www.jonesday.com/dpmalone) is an associate ..."

BlockShopper is permitted to use "deep links" to any Jones Day site. Those are links that directly access a specific page beyond the home page, such as attorneys' biographical pages.

We first wrote about BlockShopper in November 2007, describing it then as an unusual Web site. It reports on real estate transactions in exclusive neighborhoods in Chicago and other cities. What makes it unusual is that its reports go beyond the dollars-and-cents of the transaction to provide details about the buyers and sellers. Not surprisingly, given the neighborhoods, many of the buyers and sellers it profiles are lawyers.

Some of the lawyers it profiled were not too happy about it. In August 2008, Jones Day sued the Web site in federal court. It alleged that by linking to its site and using photos of lawyers from its site, BlockShopper was infringing its trademarks and engaging in unfair trade practices. A number of legal bloggers roundly condemned Jones Day for bringing the suit, with Public Citizen lawyer Paul Alan Levy leading the backlash with his post at the Consumer Law & Policy Blog in which he said that the lawsuit deserved a prize for "grossest abuse of trademark law to suppress speech the plaintiff doesn't like."

February 11, 2009

Muzzled Lawyer Gets the Boot, Threatens Suit

Deidre Dare, the provocatively named, Moscow-based U.S. lawyer who was muzzled for her writing about a fictional Moscow-based U.S. lawyer's adventures in the sack, has now herself been sacked. And she's not taking it lying down. Allen & Overy, the British firm that employed her and that two weeks earlier had sought to chill her steamy fiction, gave her the boot Jan. 30. Within days, she hired a lawyer and vowed to take legal action against the firm.

We can only hope we are not to blame for her firing after the attention we gave Dare here at Legal Blog Watch. A week before her termination, we told you about her Web site, DeidreDare.com, where she had been publishing weekly chapters of her risque serialized novel about an expatriate lawyer living in Moscow, cleverly titled, "Expat." Her novel details its heroine's sexual encounters with a series of men. It did not, apparently sit well with the higher-ups at Allen & Overy. In mid-January, the firm ordered her to cease and desist from serializing about sex.

Dare's former firm issued a statement to TheLawyer.com saying that it terminated her after following its normal disciplinary process and concluding that her behavior "was unacceptable and totally at odds with the standards of behavior that we expect from all of our people." For her part, Dare tells The Telegraph that her former firm's purported distaste for her fiction was a subterfuge to mask the real reason for her firing -- her complaints about sexual harassment by a male boss. "The whole office knew about my book but they took action against me about it only after I had complained of sexual harassment," she said.

Meanwhile, getting fired may turn into the best career move yet for the 44-year-old Dare, whose real last name is Clark. The Sunday Times featured a prominent interview with her in its arts and entertainment section. Traffic to her Web site jumped from 3,500 visitors a month to nearly a million within just a few days. Multiple publishers have approached her about book deals and she has accepted a Moscow newspaper's invitation to write a weekly column. "I'm being inundated with e-mails from across the globe, people expressing support as well as quite a few men making advances."

This week, The Bitter Lawyer snagged an interview with the now-notorious Dare, asking her, of course, whether she is bitter. "I'm a little bitter. A little bitter indeed." Bitter, yes, but also better off, as she explains:

My life has changed so dramatically, it is almost impossible to describe. I was a lawyer. Now I am, according to The Moscow News, a “celebrity author.” That’s quite a change for someone used to drafting loan agreements.

I have no regrets whatsoever.

The best part of all this is getting the column for The Moscow News. I love writing it. I love being a columnist. I love my editor. I love the paper. It is the coolest job ever.

Dare tells The Bitter Lawyer that she plans to finish the novel that got her into hot water and to "sex it up" in the process. She has already finished a nonfiction book called "Big Swinging Dicks," she says. "It was all about how men overcomplicate the practice of law just to show each other who's bigger." Little wonder she changed her name from Clark to Dare.

Apparently, there are enough geeks out there with misguided notions about the law that Paul Ohm thinks he ought to do something about it. Ohm, an associate professor of law at the University of Colorado Law School, is launching a new series of posts on Freedom to Tinker, a blog hosted by Princeton's Center for Information Technology Policy, that he is calling YANAL, for "You Are Not a Lawyer." "In this series," he explains, "I will try to disabuse computer scientists and other technically minded people of some commonly held misconceptions about the law (and the legal system)."

He kicks off the series with a brief primer on the difference between the criminal law standards for acquittal and search. Why? Because these same misguided geeks apparently are so focused on beating the rap that they forget how much trouble they can get into well before going to trial.

When techies think about criminal law, and in particular crimes committed online, they tend to fixate on this legal standard, dreaming up ways people can use technology to inject doubt into the evidence to avoid being convicted. I can't count how many conversations I have had with techies about things like the "open wireless access point defense," the "trojaned computer defense," the "NAT-ted firewall defense," and the "dynamic IP address defense." Many people have talked excitedly to me about tools like TrackMeNot or more exotic methods which promise, at least in part, to inject jail-springing reasonable doubt onto a hard drive or into a network.

But the people who place stock in these theories are neglecting a key drawback, Ohm says. While the standard of proof for conviction may be tough, the standards governing search and seizure are more lenient.

So by the time you've had your Perry Mason moment in front of the jurors, somehow convincing them that the fact that you don't enable WiFi authentication means your neighbor could've sent the death threat, your life will have been turned upside down in many ways: The police will have searched your home and seized all of your computers. They will have examined all of the files on your hard drives and read all of the messages in your inboxes. ... They will have arrested you and possibly incarcerated you pending trial. Guys with guns will have interviewed you and many of your friends, co-workers, and neighbors.

The moral of Ohm's inaugural message to all those legally misguided geeks out there is simple. Even if they can't put you away, they can sure mess up your life. And that sounds like something even a geek can understand.

Here it is just a few days before Valentine's Day, and all Boston College Law School 2L Meghan Meade is thinking about is how to dump a partner -- a moot court partner. But at least she wants the dumping to be done graciously.
Meade, a contributor to the BC Law student blog Eagleionline, offers advice for the lawlorn law student. As she explains:

Nobody likes getting dumped. ... If done respectfully, however, the dumpor may be able to help the dumpee avoid month long periods of destructive behavior in search of the oh so elusive self esteem. Same applies to moot court. Too often 2Ls declare their commitment, only to crack under the demands and shamefully dump their moot court partner."

The urge to dump comes in part, Meade explains, "because the temptations and turnoffs of moot court are plentiful." Whatever your excuse, Meade urges, at least let your partner down gently. Some of her tips for being gracious:

Don't wait until your partner has done all the work.

Don't wait until your partner has read all 300 pages of case law.

Try to prearrange for a new partner to take your place.

And this most gracious suggestion of all: Gloat silently in the privacy of your own home, as you catch up on "30 Rock."

Meade, by the way, earns extra credit in my mind for having mastered, in only her second year, the legal descriptors "dumpor" and "dumpee."

February 10, 2009

Is 2011 the End of Law Firm Leverage?

Over at The Am Law Daily, Paul Lippe of Legal OnRamp shares some interesting observations on the future of law practice, circa 2011. Although most experts predict that the recession will end by 2011, Lippe doesn't believe that law firms can viably return to the days of business as usual, where firms profited from billable hours generated by armies of associates. Though clients will continue to pay the same amount of money for partner work, Lippe believes that associate revenue will decline by half:

A typical law firm bill in
January 2011 will generate the same dollars for partner work as it does
today, but it will generate half the revenue for associate work.
Consider a bill in July 2008 for $1,000,000, representing $450,000 of
partner contribution, $500,000 of associate contribution, and $50,000
of 'other'; in January, 2011, the bill for an essentially identical
project will be $800,000, reflecting $450,000 of partner contribution,
$250,000 of associate contribution, and $100,000 of 'other.'

To make up for shortfall in labor, firms will likely outsource work, rely on contract lawyers and replace some associate time with technology. But Lippe is confident that clients will no longer pay inflated rates for associates. As a result, smaller firms that can offer flat fees and leverage technology will generally beat out larger firms, even for high-end work.

The only aspect of Lippe's argument with which I disagree is his characterization of the new face of law practice as "the end of leverage." True, firms won't leverage high-cost associates any more, but they'll still leverage their time with technology and lower cost support, as I described in this piece, "Solo Leverage Thyself." As I see it, 2011 won't bring the end of leverage, but the beginning of a new kind of leverage, facilitated by technology. In fact, I don't think we even need to wait that long -- it's happening already.

As I posted a few months back, legal markets overseas are providing a refuge for associates to ride out the economic downturn in the United States. But for associates hoping to work in a law firm branch office in Japan, that option may no longer be available. According to Legal Week, the Japan Federal Bar Association recently announced that all foreign lawyers including associates and of counsel, must be formally registered to practice.

The trouble for younger associates is that to register as a gaiben, a lawyer must have practiced for at least three years, two of which have to be outside of Japan. And the registration process can take anywhere from six months to two years. Said a Tokyo-based partner of a U.S. firm quoted in the article, "That would mean no more junior associates at all."

Still, several lawyers believe that the proposal contains enough ambiguity to leave open a loophole for associates. For example, some lawyers note that the Japanese definition of practicing law presumes that a lawyer is acting independently. Thus, an associate acting under supervision would not be deemed to be practicing law and, as such, would not be subject to the restrictions.

However, firms will need to supervise associates to steer clear of the registration requirement. According to Tsutomu Miyano, a partner at Anderson Mori & Tomotsune, the Japan bar enacted the registration requirement as a reaction to perceived abuses by foreign law firms whose unregistered associates sometimes attend meetings alone, sign documents or otherwise act independently.

Seems that people do read law firm newsletters after all, even the advertisements. According to the San Francisco legal newspaper The Recorder, Los Angeles-based Quinn Emanuel Urquhart Oliver & Hedges ran an ad in one of its business litigation newsletters boasting of its recent victories, including securing a $65 million settlement for its former client, ConnectU in its trade secret theft lawsuit against Facebook and its founder, Mark Zuckerberg. Trouble is, the parties went to great lengths to keep the settlement amount confidential, eventually filing it under seal with the court. Until the Quinn Emanuel disclosure -- which was apparently inadvertent -- the settlement amount remained a mystery.

Of course, confidentiality clause or not, it's unclear why Quinn chose to brag about the settlement in its newsletter. According to the Recorder story, ConnectU fired the Quinn lawyers who'd hashed out the settlement and unsucessfully appealed to the court to throw out the deal. Moreover, the firm is embroiled in a fee dispute with its former client, with Quinn seeking $13 million pursuant to the terms of a contingency fee agreement.

Many of the high-powered lawyers joining the Obama administration will be taking substantial pay cuts for the privilege of public service, reports the Washington Post. (See The American Lawyer's previous coverage here). But with expected salaries between $150,000 and $196,000, they're not likely to garner much sympathy from other lawyers or the general public. Moreover, a number of the lawyers joining the administration will receive generous severance packages from their previous employers, which will cushion the blow of pay cuts.

Take Eric Holder, for example. As partner at Washington, D.C.-based Covington & Burling, Holder earned $3.3 million, and he reported severance pay of $1.3 million in documents filed with the Senate Judiciary Committee. Presumably, the extra cash will make life on his new salary of $196,700 more palatable. Likewise, Jeh Johnson, a partner at Paul, Weiss, Rifkind, Wharton & Garrison who currently earns $2.6 million, will get severance of $1 million if confirmed as top lawyer in the Department of Defense, where he'll make $153,200.

Thomas J. Perrelli is eligible for an estimated "withdrawal payment" of $768,200 from Chicago-based Jenner & Block if confirmed as associate attorney general. As a partner, Perelli earned $1.4 million; his salary as associate attorney general will be $162,900. Finally, Ron Kirk, Obama's choice for U.S. trade representative, would receive a
$150,000 bonus from law firm Vinson & Elkins, of Houston, which
would also accelerate the vesting of his defined contribution plan. Kirk will earn $196,700 as trade rep.

At most, these lawyers will keep their positions anywhere from four to eight years, depending upon the length of the president's term. Moreover, unless they find themselves involved in Alberto Gonzales-type scandals, they'll have multiple employment opportunities and command an even higher salary when they leave the government. Seems like for these fortunate lawyers, public service may certainly be a privilege, but it's hardly a sacrifice.